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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 5094  OF 2008

[Arising out of SLP(C) No. 5815/2007]

THANGAMMA AND ORS. ... APPELLANT(S)

:VERSUS:

SETHUMADHAVAN ... RESPONDENT(S)

O R D E R

Leave granted.

The defendants in the original suit are the appellants before us.  

The  respondent  filed  a  suit  for  partition  in  respect  of  the  suit  schedule

property, inter alia on the premise that although the property stood in the name of

defendant - appellant No.1, but the transaction was benami in nature. The defendants

denied and disputed the aforementioned contention of the respondent.  

One of the issues which was framed by the Trial Court was:  

“Whether the defendants prove that the suit property is the joint

family property of the plaintiff and the defendants?”

The said issue was determined in favour of the appellants by the learned

Trial Judge holding:

“In fact, DW 1 also has stated that the plaintiff was residing with his

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parents till his marriage. Therefore, this document would lose much

of its importance to establish that the suit schedule property was the

joint  family  property.  Ex.  P.3  is  the  notice  issued  by  the  1st

defendant  to the  plaintiff.  In  the said  notice  issued on 23.6.1988,

defendant  No.1  had  stated  that  suit  schedule  property  were

purchased by investing the sale proceeds of the property situated at

Kozikode given by the father of the 1st defendant. This document as

stated  earlier,  dates  back  to  23.6.1988,  i.e.  much  prior  to  the

institution of the suit. Even prior to the institution of the suit the

defendant  No.1  had  categorically  stated  that  the  property  was

purchased  by  utilizing  the  sale  proceeds  of  the  property  of

Kozikode. This would not throw much light regarding the dispute in

question.”  

It was furthermore held:

“The  Property  as  stated  earlier,  would,  at  best  be  the  property

acquired in the joint venture, but for which, sufficient evidence is

not there. According to the plaintiff, he joined service in the Police

Department  in  1972.  Earlier  to  1972  he  was  not  having  any

earnings, as could be seen from the evidence. If really the plaintiff

had earnings earlier 1972, he would have produced some document

or would have spoken about it. On the other hand, in the course of

cross-examination, as referred to earlier, the plaintiff has stated that

he is not having any document to show that he had source of income

prior to 1972. Of course, in the course of cross-examination of DW1,

the learned counsel for the plaintiff had posed a suggestion to DW1

that earlier to 1972 the plaintiff  was  working  at Galaxy Theatre.

Writ reference to the said suggestion, DW1 has denied the same in

unequivocal terms.  The plaintiff, if really had an employment with

the Galaxy Theatre earlier to 1972, he would not have lost sight of to

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mention that such an important event in his life before Court. But,

in  the  course  of  his  examination-in-chief  PW1  has  not  even

whispered  a  word  about  it.  Therefore,  the  contention  of  the

plaintiff's Advocate that his client was working at Galaxy Theatre

prior to 1972, to augment the funds fall to the ground.”

Inter alia on the aforementioned finding, the suit for partition filed by the

respondent was dismissed.  A first appeal was preferred thereagainst before the High

Court. By reason of the impugned judgment, the High Court without considering any

of the aforementioned findings of the learned Trial Judge, allowed the same holding:

“In Ex.P3 – reply notice, DW1 admits that on the suit site, a house is

constructed from out  of  the terminal  benefits  of her husband.  In

evidence, she states that about 26 years ago, a property at Kachikodi

was sold and a site was purchased at Suddaguntanapalya which was

again sold and from the said funds the suit site was purchased later

on. DW1 clearly admits that she does not have any documents to

show the sale of site in  Suddaguntanapalya and use the said funds

for purchase of the suit site. Therefore, in the absence of necessary

evidence, it emerges that the property was purchased by Kumaran

Nair and the house is constructed from out of the funds of Kumaran

Nair.  The  first  defendant  appears  to  be  only  benamidar.  The

provisions  of  Benami  Transaction  Act  does  not  prohibit  benami

investment in the name of wife. The facts stated by defendant No.1

show  that  the  suit  property  is  the  self  acquired  property  of  the

propositus.  In  that  view,  upon  his  demise,  the  wife  and children

would  be  entitled  to  equal  share  under  Section  8  of  the  Hindu

Succession Act. Obviously, the plaintiff  is entitled to 1/5th share in

the suit property. The judgment and decree of the trial court is set

aside. The appeal is partly allowed as indicated above.”  

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Having heard the learned counsel for the parties, we are of the opinion that

keeping in view the nature of the dispute, namely, as to whether the transaction in

question was a benami one, was required to be gone into by the High Court keeping in

view the findings  of  the learned Trial  Judge.   The High Court did  not follow the

provisions of order 41 Rule 31 of the CPC; the reasonings of the learned Trial Judge

were not met and the oral evidence adduced by the parties have not been discussed.   

In this view of the matter, the impugned judgment cannot be sustained and it

is set aside accordingly. The appeal is allowed and the matter is remitted to the High

Court for consideration thereof afresh on merit.  

We make it clear that all contentions of the parties shall remain open.

..........................J (S.B. SINHA)

..........................J   (AFTAB ALAM)    NEW DELHI, AUGUST 13, 2008.